TENTATIVE RULING - Ellington CMS · TENTATIVE RULING Judge Donna Geck Department 4 SBAnacapa 1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 931211107 CIVIL LAW & MOTION County

1/8/2015 Superior Court of the County of Santa Barbara Online Services Tenative Rulings

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TENTATIVE RULING

Judge Donna GeckDepartment 4 SBAnacapa1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 931211107

CIVIL LAW & MOTION

County of Santa Barbara vs Civil Service Commission etc

Case No: 1440046Hearing Date: Fri Jan 09, 2015 9:30Nature of Proceedings: Writ of MandateAs set forth in the decision of respondent Civil Service Commission of Santa BarbaraCounty (“Commission”), real party in interest Grady W. Williams appealed from hisdismissal as a Program Business Leader with the Santa Barbara County General ServicesDepartment (“GSD”). The Commission held a hearing on November 13, 2013. TheCommission concluded that the dismissal of Williams was not justified under thecircumstances, reversed the discipline imposed on him, and ordered that petitioner Countyof Santa Barbara reinstate Williams to his position, with full back pay, benefits and interest.The decision was signed and served on Williams and County on November 21, 2013. On February 14, 2014, County filed its petition for writ of administrative mandamus to setaside and vacate the decision of the Commission. The County argues: 1) The Commissionerroneously interpreted B&P Code § 6787(h) by finding that Williams did not knowinglymisrepresent himself as a professional engineer in violation of California law, and byfinding that the evidence did not show his use of the “P.E.” designation might lead to thebelief that he was a licensed engineer in California. 2) The Commission abused itsdiscretion by finding that Williams’s criminal conduct did not warrant any discipline at all. 3)The Commission’s failure to provide adequate findings invalidates the decision. TheCommission did not cite supporting evidence for its findings. On March 25, 2014, Williams filed a crosspetition for writ of mandate asking the court toset aside an erroneous ruling on Williams’ statute of limitation defense under Civil ServiceRule 1214, which requires service of a notice of disciplinary action within one year afterthe cause for discipline first arose. The Commission ruled the defense lacked meritbecause of the continuous accrual doctrine. (The Commission did not base its ruling onthe continuing violation doctrine.) Williams also asks the court to mandate that theCommission hear his motion for attorney fees. In the alternative, he asks the court to hear

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the motion for fees. On March 26, 2014, Williams filed a complaint against County for wrongful termination.The court has related the two cases. Facts and Proceedings Before the Commission: Notice: On June 24, 2013, the County General Services Department (“GS”) sent a noticeof proposed disciplinary action – dismissal from County service – to Williams. It was basedon a disciplinary report from the County Human Resources Department (“HR”). Thecauses for termination were that Williams held himself out as a professional engineer byusing the designation “P.E.” during his employment with County. He is a licensedprofessional engineer in Washington, but not California. For a short time, he used aqualification that he was licensed in Washington. He has been confronted about using the“P.E.” designation but continued to use it. [Administrative Record (“AR”) 177180] Williamswas placed on administrative leave pending investigation on June 10, 2013. The HR Investigation Report dated June 20, 2013: HR interviewed Williams, CountyArchitect Robert Ooley, Asst. Public Works Director Tom Fayram, and former GSDDirector Bob Nisbet. [AR 181] Ooley and Fayram provided documentary evidence as didPublic Works Director Scott McGolpin and current GSD Director Matt Pontes. [AR 182] Williams acknowledged that he used the P.E. designation on his business card and emailsignature line and possibly on County letterhead and signatures lines on various contractshe has signed as a County employee. He had used an asterisk and information that hewas licensed in Washington but could not recall when he stopped using that. He said that,when he first started with County in 2002, he asked his supervisor if he should use theP.E. designation and was told to do so but that he should always make clear he was notlicensed in California. He believes this was either Ooley or Nisbet. He made it clear whenhe was hired that he was not licensed in California. [AR 182183] Ooley said he did not tell Williams to use the P.E. designation. When he supervisedWilliams, he knew he was not licensed in California, but licensure was not a requirementfor his position. He confronted Williams about using the P.E. designation, as did Fayram inor around 2009. [AR 183] Fayram recalled the subject of Williams’ use of P.E. came up at a meeting where Williamswas present. Fayram is a licensed professional engineer. He told Williams the P.E.designation was not correct and told him there were disciplinary consequences from thestate. He believed he saw Williams use the P.E. designation in 2005 and expressedconcerns to Williams then. [AR 183184] Nisbet did not recall telling Williams to use the P.E. designation. [AR 184]



Williams was interviewed a second time. [AR 184] He recalled getting a phone call fromFayram who suggested it might not be appropriate to use P.E.. He also called the statelicensing board and the woman he spoke with said she would not recommend it but, aslong as he was not a practicing engineer, use of P.E. was benign. This could have been in2011. [AR 184185] He could not recall this coming up in a meeting or if he was ever toldhis use of P.E. was misleading, unethical or a violation of the B&P Code. [AR 185] Askedwhy he didn’t tell his interviewers that he was advised not to use P.E., Williams said heanswered the questions asked and did not recall at the time if he was told it was not agood idea. He said he told his former supervisor Paddy Langlands and his presentsupervisor Matt Pontes that he was licensed in Washington, not California. [AR 185186] HR Findings: Williams was not licensed as an engineer in California, yet he used the P.E.designation on emails and other forms of correspondence and on contracts anddocuments developed within the course and scope of his County employment. The NorthCounty Jail contract Williams was charged with administering states that County chose “aCapital Projects Division Manager, a professional engineer, with a Master of Sciencedegree in engineering and 30 years of experience” to be construction administrator andoverall project manager. Williams knew or should have known that the terms of thecontract would be construed under the laws of the state in which it was written and that hewas a party to a material misrepresentation of facts. Neither Nisbet nor Ooley confirmedgiving Williams an instruction to use the P.E. designation. At his first interview, Williamsdid not say that both Ooley and Fayram told Williams that using the P.E. designation wasimproper and a violation of the B&P Code. At his second interview, Williams indicated thatFayram had mentioned that the use of the P.E. designation might be of concern. [AR 186] Williams indicated he phoned the state licensing board and was told his use of P.E. wasnot a significant problem but he could not remember the name of the person to whom hespoke or when he had the conversation. HR found Ooley and Fayram’s testimony to becredible and Williams testimony regarding what they said was not credible. HR felt stronglythat Williams knew he should not continue to use P.E. after two coworkers who areprofessionally licensed in California told him it was a violation of law but Williamscontinued to do so. [AR 187] Ooley and Fayram provided emails substantiating that theybrought the issue to Williams’ attention. McGolpin supported that Fayram had spoken withhim about confronting Williams on the issue. [AR 187] At the second interview, Williams said he had contacted the state and was told he couldnot use the P.E. designation without clarifying that his license was not in California. [AR187] HR concluded that Williams knowingly and willingly violated the B&P Code by continuingto use the P.E. designation after being confronted by Ooley and Fayram and being told bythe state that it was not proper. Williams was not forthcoming and truthful at his firstinterview. [AR 187] HR found cause for disciplinary action under these subsections of County Civil ServiceRule 1203:



a. Willful or negligent violation of the provisions of the Civil Service law or of these Rules,or other applicable written and published departmental rules, regulations, and policieswhich do not conflict with these Rules. b. Inefficiency, incompetence, or negligence in the performance of duties, including failureto perform assigned tasks or failure to discharge duties in a prompt, competent, andresponsible manner. c. Refusal to accept a reasonable and proper assignment from an authorized supervisor;insubordination. k. Conduct by a County officer or employee which discredits the County or which isincompatible with the due and faithful discharge of his or her duties. o. Statements or conduct, or both, tending to interfere with the reasonable managementand discipline of the County or any of the departments and divisions. HR concluded that Williams “was untruthful and therefore insubordinate in both of hisinterviews.” [AR 187188] HR recommended dismissal. [AR 188] Board of Professional Engineers, Land Surveyors, and Geologists (“State Board”):County Executive Chandra Wallar filed a complaint with the State Board regardingmisrepresentation for the P.E. designation while employed with County without noting thathe is licensed in Washington. By letter dated October 31, 2013, the State Board informedWallar that Williams confirmed he is aware of laws prohibiting use of P.E. without notingthat his license is held in Washington. The case was closed. Williams was advised toensure the proper notation and that future complaints could result in action against him. Commission Hearing: On November 13, 2013, the Commission held its hearing onWilliams’ appeal of his dismissal. The Commission first dealt with Williams’ contention thatCounty Civil Service Rule 1214, which reads, in pertinent part: 1214. Statute of Limitations.No disciplinary action shall be valid against any County employee for any cause fordiscipline based on any provision of the initiative ordinance or Civil Service Rule, unlessthe Notice of Disciplinary Action is served within one (1) year after the cause for discipline,upon which said Notice is based, first arose. Williams contended the cause for discipline first arose in 2002 when he first started usingthe P.E. designation and any discipline based on that conduct during his 11 years ofservice is timebarred by the oneyear limitation. The hearing officer determined that the



continuous accrual doctrine applies and County could pursue disciplinary action based onWilliams’ use of P.E. for the oneyear period before the notice of proposed disciplinaryaction. The officer also found that Williams’ use of P.E. throughout his employment wasadmissible to provide context and as potentially relevant to show knowledge and intent.Also, County charged Williams with insubordination for allegedly lying to investigators,which is a separate and distinct offense that independently triggered the limitation periodand involved disputed factual questions the Commission must resolve. [AR 335:5337:15] At the outset, it was established there were no performance issues. County was notclaiming that Williams performed engineering duties. And Williams’ performanceevaluations were good. [AR 350:2351:8] It was also established that there was nocommunication to Williams to stop using P.E. or use an asterisk. [AR 352:13353:14] Itwas stipulated that no position Williams held required a professional engineer license. [AR376:1123] Williams testified: He is a licensed professional engineer in the state of Washington. [AR356:13] In 2002, he took the California professional engineer exam and did not pass. [AR356:4357:8] He informed Ooley that he did not pass. [AR 357:917] Ooley told him it didn’tmatter because his job didn’t require it. [AR 358:21359:2; 387:521] Fayram twice spoketo him about the use of P.E. in his title. [AR 359:37] The first time was in 2005 and thesecond time in 2011. [AR 360:17] The first time, Williams went to his supervisor, Ooley,and Ooley said it wasn’t a problem. [AR 360:13361:1] Ooley did not tell Williams it wasimproper. [AR 364:67] Williams did not independently verify whether it was appropriate touse P.E. [AR 361:2023] Ooley started off using the P.E. designation for Williams andcontinued to do so. Williams followed suit. [AR 362:510] Ooley encouraged Williams touse P.E. [AR 446:715] When Fayram brought up the use of P.E. in 2011, he was upsetwith the project Williams was managing. At that point Williams told his supervisor, PaddyLanglands. [AR 362:22363:18] After Fayram said something in 2011, Williams started using an asterisk in his emails,noting that he was licensed in Washington. [AR 365:921, 416:16419:17] He called thebusiness and professions board and was told it was “benign.” [AR 365:22366:22] He doesnot recall to whom he spoke. [AR 366:23367:2] In 2013, he contacted the state again andwas told he could put P.E. in his title but would have to indicate that he was not licensed inCalifornia. [AR 367:324] Prior to his termination, Williams was the manager of the North County Jail project. [AR368:1319] He was responsible for bringing contracts for that project to the Board ofSupervisors. [AR 368:20370:6] The agreement with the State of California was a templatethe State had prepared and gave to the County to fill in the blanks. Williams providedinformation on the project scope, budget and schedule. He was responsible for leading theteam, hiring consultants, establishing the budget, keeping the project on schedule. [AR370:16371:21] Williams previously worked with the Army Corps of Engineers. They told him to use P.E. inhis title no matter where he worked for them. The Goleta Water District knew he waslicensed in Washington and created a business card with P.E. on it. [AR 378:124] It wasnever raised as an issue. [AR 380:712]



When he applied for a job with the County, in his cover letter to Ooley, he said he waslicensed in Washington and was scheduled to take the California exam. [AR 381:624] Hisapplication indicated his Washington licensure. [AR 382:216] At the interview it wasdiscussed that he was going to take the California exam and that he was applying for theposition of project manager, not engineer. They said, “That’s understood, and that’s fine.”Ooley was at that meeting. [AR 383:718] Ooley’s June 26, 2002, letter offering employment was addressed to “Grady W. Williams,P.E.” [AR 046, 383:19384:3; Exhibit 5] The contract the County prepared includes theP.E. designation. [AR 047055, 384:21386:1; Exhibit 6] The July 3, 2002, Board ofSupervisors agenda letter used the P.E. designation after Williams’ name. Williams had nopart in preparing that. [AR 056, 387:22388:19; Exhibit 7] Other documents werepresented to the Commission that were prepared by others at the County, including Ooley,and included the P.E. designation. [AR 058085, 105, 390:2399:17, 405:13406:22;Exhibits 8, 9, 11, 12, 13, 14, 18] Williams applied for another position using “P.E.” andadding “Professional Engineer, Washington.” [AR 086103, 399:18404:12; Exhibits 15,16] GSD letterhead in 2008 referred to “Grady Williams, PE, Capital Projects Manager,”showed Nisbet and director and Langlands as Asst. Director. Williams did not participate inputting that letterhead together. [AR 104, 404:14405:12, Exhibit 17] Ooley modified aletter Williams drafted but made no alteration to the P.E. designation. [AR 110111,419:18421:9; Exhibit 25] Ooley never reprimanded Williams for using the P.E.designation. [AR 421:10422:25] The County sometimes paid to renew Williams’Washington professional engineer license. [AR 433:4434:6] The North County jail project is the biggest project in the County’s history, with a projectedcost of $96 million. In late 2007, Williams began as project manager. [AR 406:23407:21]At a “Red Team” meeting with County and State officials, including Leslie Heller (sp?) ofthe Board of State and Community Corrections, someone suggested that Williams wasable to do something as a professional engineer and Williams made it clear that he is notlicensed in California, only Washington. [AR 409:2410:23] Commander Thomas Jenkins(ret) was the Sheriff’s designee on the project for seven years. He recalls the meetingwhere Williams clarified that he was licensed out of state. [AR 169171; Exhibit 34] Thecovers for applications to the State for jail project funding state that Williams is the projectmanager and he is a professional engineer licensed in Washington. [AR 106109, 411:8415:21; Exhibits 19, 20] In February 2013, Williams prepared an email announcing Celeste Manolas becomingmanager of capital projects while he focused on the jail project. He mentioned that she isan architect. Ooley wrote him and told him to be careful about referring to her as anarchitect as one can only use the term architect or engineer if licensed in California.Manolas holds an architecture degree but is not licensed. He said that licensed architectstake offense to the reference “much like, I am sure, you would if someone referred tothemselves or introduced by someone as an Engineer, when in fact they are not.” Williamsimmediately responded: “My apologies. You are correct.” [AR 115116, 423:21426:7;Exhibit 27] Williams’ performance evaluations were at or near the very top rating of “exceptional



performer.” He was using the P.E. designation during that time. [AR 434:9435:15] Williams was surprised by the HR investigation and did not know what it was about. Hecooperated. Between the first and second interviews, he remembered other thingsbecause he now knew what it was about. [AR 435:16438:13] About a month after theCounty dismissed him, he was contacted by the State about a complaint, there was nodiscipline and the case was closed. [AR 438:14441:6] The complaint was filed by theCounty CEO and it was about the alleged misrepresentation of P.E. status. [AR 252;Exhibit F] The State’s October 31, 2013, letter to the County CEO indicated that it hasreceived confirmation that Williams is aware of the laws prohibiting misrepresentation ofthe use and title of professional engineer and P.E. without notation that his license is inWashington. Williams has been advised to ensure that he notes his license is inWashington and future complaints could result in action being taken against him. [AR 252,455:517; Exhibit F] If given his job back, Williams would use the asterisk and note that his license is inWashington. [ARE 454:1621] County Architect Ooley testified: Ooley was part of the original panel that hiredWilliams, knew he was licensed in Washington, and prepared documents to go to theBoard of Supervisors referring to him as a P.E. because he is a P.E. in Washington. [AR462:25463:22] Ooley did not order or approve business cards for Williams. [AR 465:10466:4] Williams did not tell him he failed the California P.E. exam. [AR 466:1219] He didnot encourage Williams to use P.E. after his name. [AR 466:2023] He did not tell Williamsnot to do it. [AR 466:25467:1] Williams did not tell Ooley about Fayram contacting himabout use of P.E., but was aware of “scuttlebutt going around the office” that Fayram wasupset with Williams for using P.E. [AR 467:16468:5] He does not believe he would havesaid it was no big deal for Williams to use P.E. [AR 468:912] He could not recallapproving a request for reimbursement for Williams’ Washington license. [AR 468:1821]Ooley corrected Williams when he referred to an individual as an architect. She had adegree in architecture and was not licensed. [AR 115117, 469:1470:17; Exhibit 27] Ooley recalled having an exchange with Williams about use of P.E. but he searched his emails and could not find one. [AR 471:11473:24] The email exchange regarding Williams’reference to Ms. Manolas as an architect was not intended to tell Williams he was doingsomething improper by referencing the word “engineer.” [AR 474:514] He receivedcountless emails from Williams with P.E., knew it was unethical and illegal, and did notsay a word about it. [AR 475:416] Ooley acknowledged referring to Williams as P.E.,including to the County Board of Supervisors. [AR 475:19476:15, 481:16482:21] Hedrafted contracts referring to Williams as P.E.. [AR 476:24477:11] There is nothingmisleading about Williams in the applications to the State for jail funding. [AR 483:6484:1] Williams became Ooley’s supervisor in approximately June 2006. Williams disciplined himon two occasions and Ooley was demoted. [AR 485:22487:25] Nisbet Declaration: Ooley or Nisbet was responsible for the content of Williams’ initialbusiness cards. [AR 173:1821] Nisbet does not recall having a conversation with Williams



about the use of P.E. [AR 173:27174:1] Nisbet reviewed and cosigned Williams’performance appraisals. Williams was an exceptional or at least highly successfulperformer. Nisbet received a letter from the Sheriff that was very complimentary ofWilliams’ performance on the jail project. [AR 174:1014] GSD Director Matthew Pontes testified: Pontes started with the County on April 15,2013. [AR 495:25496:2] At some point during the North County jail project, “somebody”asked if Williams was a licensed P.E. in California. [AR 500:23501:12] He inquired ofWilliams why he didn’t get licensed as a P.E. in California and Williams said it was not arequirement for the job. [AR 503:21504:23] Pontes referred the matter of Williams’ P.E.licensure to HR because he “heard reports that people were asking about Grady Williamsand whether or not he actually was licensed in the State of California.” He did not knowwho was asking those questions. [AR 505:318] He said Williams used P.E. after his namein introductions at a jail project meeting – a highly visible meeting. [AR 505:18506:1] Heknew that violated some state law. [AR 506:2025] It is Pontes’ job to know what liabilitiesare out there. [AR 506:13] He did not want to have a newspaper report that an 80 milliondollar project grant was at risk “due to fraudulent project manager ‘PE’.” He wasconcerned the County had misrepresented itself in state contracts, to the media, and tooutside agencies. [AR 507:1520] Pontes decided to terminate Williams to make sure the department was dealing in a fair,equitable and honest manner. [AR 510:1120]. The factor indicating termination instead ofprogressive discipline was that Williams previously used the qualifying asterisk next toP.E. but stopped, so he knew the difference between right and wrong. [AR 511:16512:7]Williams acknowledged that the County had not “toed the line” as well as he would haveliked and did not insist on qualifying the P.E. designation. [AR 512:19513:2] County CEO Chandra Wallar asked Pontes to ask Williams about his P.E. designationafter the Red Team meetings she participated in. [AR 514:57, 515:517] She did not tellPontes who asked her about his engineer status. [AR 515:18516:8] Pontes acknowledgedthat there has been no liability of the County as a result of Williams’ use of P.E. but that“continual use of the ‘PE’ designation by staff that is – that is not true is a liability.” [AR516:18517:24] Up until Williams’ dismissal, the jail project was done properly and was ontime. The State and Sheriff were satisfied with Williams’ work on the jail project. [AR518:213] Pontes acknowledges that Williams had excellent or “above standard” reviews,though Pontes could not say what Williams’ rating was. [AR 518:14519:13] Pontes did notcontact the State’s point person on the jail contract to determine if she cared that Williamsput P.E. next to his name. [AR 520:2025] There was no State determination that Williamshad done something unethical or illegal and the State did not investigate until Wallarcomplained. [AR 522:210] When asked whether an asterisk would remedy the problem,Pontes said when he “posed termination,” he did not know how aggressive the state wouldbe regarding violations. [AR 524:29] Pontes could not say whether the County had givenWilliams clear guidance on what to do in this regard. [AR 525:819] Pontes acknowledgedthat the HR report said that Ooley and Fayram provided emails substantiating that theybrought the issue to Williams’ attention but there were no such emails provided. [AR526:11529:15] The actual jail contract refers to Williams as a P.E. without qualification. [AR 232, 530:13533:4]



Commission’s Decision: The Commission reiterated the hearing officer’s conclusionsabout the statute of limitation issue discussed above. [AR 274:215, 278:9289:22] The Commission unanimously determined that Williams’ dismissal be reversed andWilliams’ conduct did not provide the basis for any discipline. [AR 290:25] TheCommission considered the overall impact of many facts, including specific factualfindings: Williams has been a licensed P.E. in Washington since 1986. While working for the ArmyCorps of Engineers and Goleta Water District, he was informed that it was appropriate forhim to use the P.E. designation. He was under the mistaken but good faith belief that itwas acceptable for him to use the P.E. designation in California so long as he did not workas a professional engineer. [AR 291:19] Williams informed the County that he waslicensed in Washington and did not mislead anyone about the fact that he did not pass theCalifornia exam. [AR 291:1015] He never held a job that required a P.E. license inCalifornia. [AR 291:1920] Throughout his 11 years of employment with GSD, it was wellknown by his supervisors and those who worked with him that Williams was licensed inWashington only. He displayed his Washington certificate in his office. [AR 291:21292:3]Throughout his employment, Williams and others in the department used P.E. after hisname, including on business cards issued by the department. [AR 292:49] Williams wasnever instructed by a supervisor not to use the P.E. designation and never received anyofficial warning or other discipline indicating it was wrong or improper to use P.E. after hisname. [AR 292:1014] The department’s standard letterhead lists his name with the P.E.designation. [AR 292:1516] Fayram twice confronted Williams regarding his use of P.E.For a brief time in 2011, Williams used an asterisk and explanation. He contacted the statelicensing board and was told use of P.E. was benign. [AR 292:17293:13] During meetingsrelating to the jail project, Williams clarified that he was licensed in Washington.Documents relating to the jail project refer to Williams being licensed in Washington. [AR293:1422] Given the widespread knowledge within the County and with participants inprojects, the department did not establish that the P.E. designation might lead to the beliefthat Williams was licensed in California. [AR 294:16] Pontes mistakenly believed thatWilliams had knowingly misrepresented himself as a P.E. licensed in California; mistakenlyrelied on an uncorroborated statement that Williams had been notified in writing not to usethe P.E. designation; and mistakenly concluded that Williams discontinuation of the use ofan asterisk demonstrated that the knowingly and willfully violated the B&P Code. [AR294:717] Pontes did not list lying during an investigation as a reason for terminatingWilliams. He speculated that the P.E. designation might result in potential liability. Hisconcerns were unwarranted and unjustified. His claim that he might have been misled byWilliams’ business card “was not credited given the widespread institutional knowledgethat [Williams] was a licensed engineer in Washington, not California.” [AR 294:18295:7]The evidence did not establish that Williams lied during the internal investigation. [AR295:89] Williams’ response to Ooley pointing out his mistaken reference to Manolas as anarchitect demonstrated that Williams was “receptive to feedback and that heacknowledged when he was wrong.” [AR 295:1015] In response to the internalinvestigation, Williams contacted the California Board for Professional Engineers on June11, 2013, about his use of P.E. An enforcement program manager informed him he mustspecify the state he is licensed in if he refers to himself as P.E. Williams intends to followthis advice. This was the first time Williams learned he was required to qualify his use of



P.E. [AR 295:16296:2] On October 31, 2013, the Board of Professional Engineers notifiedCounty that it was closing the case involving the alleged misrepresentation for Williams’use of P.E. while employed with the County. The enforcement analyst indicated Williamshad been advised to notate that his license is held in Washington if he uses P.E. while inCalifornia. [AR 296:39] Williams received superior performance evaluations in the threeyears preceding the dismissal action. [AR 297:12] The Commission concluded dismissal was not justified and reversed the discipline.Williams “shall be reinstated to his position, with full back pay, benefits, and interest, andshould otherwise be made whole.” [AR 297:49] A. Standard of Review: This is a petition for writ of mandamus challenging an administrative decision. “The inquiryin such a case shall extend to the questions whether the respondent has proceededwithout, or in excess of, jurisdiction; whether there was a fair trial; and whether there wasany prejudicial abuse of discretion. Abuse of discretion is established if the respondent hasnot proceeded in the manner required by law, the order or decision is not supported by thefindings, or the findings are not supported by the evidence.” CCP § 1094.5(b). When an administrative mandamus proceeding is initiated by a county in an effort toreinstate a decision to fire an employee, the trial court utilizes the substantial evidence testin reviewing the commission's decision. County of Los Angeles v. Civil Service Com., 39Cal.App.4th 620, 633 (1995). The court “is not free to substitute its discretion for that of theadministrative agency. ‘If reasonable minds may differ with regard to the appropriatedisciplinary action, there is no abuse of discretion.’” Id. at 634 [citation omitted]. The courtexamines all relevant evidence in the administrative record and views that evidence in thelight most favorable to the Commission’s decision “resolving all conflicts in the evidenceand drawing all inferences in support of the [decision].” Do v. Regents of University ofCalifornia, 216 Cal.App.4th 1474, 1490 (2013). “Only if no reasonable person could reachthe conclusion reached by the administrative agency, based on the entire record before it,will a court conclude that the agency's findings are not supported by substantial evidence.”Id. “The reviewing court is free to determine independently the application of laws,regulations, or procedures.” Apte v. Regents of Univ. of Cal., 198 Cal.App.3d 1084, 1092(1988). In mandamus proceedings arising from public employment administrative hearings, thetrial court is required to exercise its independent judgment of the evidence before theagency. Thornbrough v. Western Placer Unified School Dist., 223 Cal.App.4th 169, 179(2013). The trial court has the power to make credibility findings. Id. The court begins witha strong presumption that the agency’s decision is correct and the appellant has theburden of proof to show that the decision was against the weight of the evidence. Id.[Citation.] The court “must accord a strong presumption of . . . correctness toadministrative findings, and that the burden rests upon the complaining party to show thatthe administrative decision is contrary to the weight of the evidence.” Fukuda v. City ofAngels, 20 Cal.4th 805, 817 (1999) [internal quotations and citations omitted].



If an agency makes specific findings that are inconsistent with its action, the court’s reviewextends to a de novo comparison of the findings and the decision to determine if the twoare inherently inconsistent, i.e., whether it is possible that the one could follow from theother. County of Santa Cruz v. Civil Service Commission of Santa Cruz, 171 Cal.App.4th1577, 1584 (2009). The agency’s exercise of discretion to reinstate an employee must bebased on reason and will be reversed if it exceeds the bounds of reason. Id. In the context of public employee discipline, “the overriding consideration in these cases isthe extent to which the employee's conduct resulted in, or if repeated is likely to result in,‘[harm] to the public service.’ [Citations] Other relevant factors include the circumstancessurrounding the misconduct and the likelihood of its recurrence.” Skelly v. State PersonnelBoard, 15 Cal.3d 194, 218 (1975). “The public is entitled to protection from unprofessionalemployees whose conduct places people at risk of injury and the government at risk ofincurring liability.” Hankla v. Long Beach Civil Service Com., 34 Cal.App.4th 1216, 1223(1995). B. County Petition: 1. Commission’s Interpretation of B&P Code § 6787(h): County contends that theCommission based its decision that the County did not prove misconduct on amisinterpretation of B&P Code § 6787(h). First, the court does not believe the Commissionbased its decision on a failure to prove misconduct but rather found a failure to provemisconduct that warranted discipline under the circumstances. Nevertheless, the court willaddress County’s statutory argument. B&P Code § 6787(h) provides that a person is guilty of a misdemeanor: Who uses the title, or any combination of that title, of “professional engineer,” “licensedengineer,” “registered engineer,” or the branch titles specified in Section 6732, or theauthority titles specified in Sections 6736 and 6736.1, or “engineerintraining,” or whomakes use of any abbreviation of that title that might lead to the belief that he or she is alicensed engineer, is authorized to use the titles specified in Section 6736 or 6736.1, orholds a certificate as an engineerintraining, without being licensed, authorized, orcertified as required by this chapter. Williams does not dispute that “P.E.” is an abbreviation for “professional engineer.” The Commission noted that it is a misdemeanor for a person not licensed in California touse the title “Professional Engineer” or “P.E.” “in a manner ‘that might lead to the beliefthat he or she is a licensed engineer.’” [AR 274:20275:3] One Commissioner alsodemonstrated that understanding of the statute while questioning Mr. Pontes and Mr.Pontes agreed with him. [AR 489:19491:4] That is not an accurate description of thestatute. It is a misdemeanor to use the title professional engineer when not licensed inCalifornia and it is a misdemeanor to use an abbreviation that might lead to the belief thatone is a licensed engineer. The manner of use is irrelevant.



County says the Commission added to its misinterpretation “by apparently requiring proofthat Mr. Williams was ‘knowingly misrepresenting himself.’” [County P&As in Support ofPetition 10:89] County does not point out a specific finding that evinces this requirement.County confuses the Commission’s discussion of the statute with its discussion of thecircumstances surrounding any misconduct. Any misinterpretation of the statute does not invalidate the Commission’s decision. TheCommission did not directly state whether it found Williams had violated B&P Code §6787(h). The Commission’s decision instead focused on considerations discussed below. 2. The Commission Did Not Abuse Its Discretion by Finding that Williams’ Conduct Did NotWarrant Any Discipline: The “overriding consideration,” in employee discipline cases is“the extent to which the employee's conduct resulted in, or if repeated is likely to result in,‘[harm] to the public service.’” Skelly v. State Personnel Board, supra, 15 Cal.3d at 218.The Commission properly considered “the circumstances surrounding the misconduct andthe likelihood of its recurrence.” Id. In that context, it is clear that the Commission determined that Williams’ use of “P.E.” didnot result in harm and is not likely to recur given Williams’ testimony at the hearing and hisassurances reflected in the letter from the Board for Professional Engineers, LandSurveyors, and Geologists. First, it is clear from the evidence that Williams’ use of “P.E.”did not cause any harm to County. He made it clear when he was hired and in meetingswith State and County officials regarding the jail project that he was licensed inWashington. The written application for jail funding expressly stated that he was licensedin Washington. County did not demonstrate that any State or County official, other than Pontes, wasmisled by the P.E. designation. County says Pontes was misled by Williams’ businesscard. But Pontes did not do anything in reliance on Williams’ use of P.E. (In fact, theCommission expressly found Pontes’ claim that he might have been misled by Williams’business card “was not credited given the widespread institutional knowledge that[Williams] was a licensed engineer in Washington, not California.” [AR 294:18295:7]) Yet,only two months and nine days passed from the date Pontes began to work for County tothe date of the notice of Williams’ proposed dismissal. [AR 510:911, 177] And Pontes onlyasked Williams about his licensing after Wallar told him to look into it. When Pontes asked,Williams readily told him he was licensed in Washington and not California. [AR 502:1504:23, 514:57] Pontes did not testify that he even noticed the use of P.E. prior to Wallarbringing it up. And Wallar brought it up after attending the “Red Team” meetings. [AR514:57, 515:517] It was at a “Red Team” meeting that someone suggested that Williamswas able to do something as a professional engineer and Williams made it clear that he isnot licensed in California, only Washington. [AR 409:2410:23] Pontes only speculated about possible harm from the media taking notice of Williams’ useof P.E. He was asked what consequences would follow if the County “can’t fulfill its end ofthe agreement with the State.” He said it would jeopardize the grant and the County mighthave to pay money back. [AR 534:23535:11] But there is no evidence that Williams’



licensure status would constitute a breach of the jail agreement. “Grady Williams, PE”appears twice in the copy of the contract that is part of the record. [AR 232, 237] He is the“Participating County Construction Administrator.” An exhibit to the contract says: “TheCounty has slected it’s Capital Projects Division Manager, a professional engineer with aMaster of Science Degree in engineering and 30 years of experience” to be theconstruction administrator and overall project manager. [AR 236] There is nothing in thecontract that says he must be an engineer or that his being an engineer is a materialrequirement of the contract. The evidence supports the Commission’s finding that Pontesspeculated that the P.E. designation might result in potential liability and his concernswere unwarranted and unjustified. [AR 295:25] County attempts to argue that Williams not being a California licensed engineer wouldconstitute a material breach of the jail contract. “If Mr. Williams had remained on theproject and the State had subsequently learned he was not a California engineer, it couldhave deemed this a ‘material breach’ triggering the County’s refund obligation. Regardlessof the likelihood of this scenario, Mr. Williams’ misrepresentation of his professionalqualifications in the agreement exposed the County to possible multimillion dollar liability.”[County P&A in Support of Petition 12:1216] But this argument is not grounded in fact orlegal analysis and County offers none. As discussed above, there is no term of thecontract requiring that an engineer be the County’s administrator. And the State knew hewas licensed in Washington as the written application expressly states and as he clarifiedat a “Red Team” meeting. If, as County suggests, the likelihood of a scenario is irrelevant,there may be any number of immaterial events the State “might deem” material breachesof the contract. That does not mean County can fire every employee involved in thoseimmaterial events. “Harm to the public service” is not necessarily the same as material harm to the County.Dishonesty and deliberate misrepresentations of material fact would harm the publicservice. County seems to suggest that a misdemeanor under B&P Code § 6787(h)necessarily constitutes harm to public service. County cites no authority for thatproposition. Turning to Supreme Court’s direction in Skelly, the court looks to thecircumstances surrounding any misconduct. In this context, the Commission made specific findings about Williams’ use of P.E. Prioremployers informed him that it was appropriate for him to use the P.E. designation.Williams was under the mistaken but good faith belief that it was acceptable for him to usethe P.E. designation in California so long as he did not work as a professional engineer.[AR 291:19] Williams informed the County that he was licensed in Washington, did notmislead anyone about the fact that he did not pass the California exam, and never held ajob that required a P.E. license in California. [AR 291:1015, 291:1920] Throughout his 11years of employment with GSD, his supervisors and those who worked with him knew thatWilliams was licensed in Washington only. He displayed his Washington certificate in hisoffice. [AR 291:21292:3] Throughout his employment, not only did Williams use P.E. after his name, others in thedepartment did so as well, including on business cards issued by the department. [AR292:49, 292:1516] The evidence showed that P.E. appeared on numerous documentsthat Williams did not prepare. [AR 046, 383:19384:3,047055, 384:21386:1, 056, 387:22388:19, 058085, 105, 390:2399:17, 405:13406:22, 104, 404:14405:12; Exhibits 5, 6, 7,



8, 9, 11, 12, 13, 14, 17, 18] So much of the “misconduct” of which County complains wasperpetrated by other County employees. The Commission’s findings reflect that it was influenced by the fact that Williams’supervisors never instructed him not to use the P.E. designation and that he neverreceived any official warning or other discipline indicating it was wrong or improper to useP.E. after his name. [AR 292:1014] A new administrator comes on board and, acting onthe County CEO’s instructions, asks about Williams licensure and, within two months,Williams was fired. Instead, County only needed to do what the State Board forProfessional Engineers, Land Surveyors, and Geologists did: contact Williams, explain hisunqualified use of P.E. was improper, and get his assurance that he won’t do it again.Williams testified that, if given his job back, he would use the asterisk and note that hislicense is in Washington. [ARE 454:1621] The Commission found that Williams’ responseto Ooley pointing out his mistaken reference to Manolas as an architect demonstrated thatWilliams was “receptive to feedback and that he acknowledged when he was wrong.” [AR295:1015] County says discipline for use of the P.E. designation in violation of B&P Code § 6787(h)justifies a finding that Williams committed one of the violations charged against him –irresponsibility in discharging his duties, interfering with reasonable management ordiscipline, or conduct discrediting the County or incompatible with his duties, citing CivilService Rule 1203 b., k. and o. But, for the same reasons the findings and evidence areconsistent with a conclusion that Williams’ conduct did not harm the public service, it didnot constitute the causes set forth in the Civil Service Rules cited by County. County says that, during the HR investigation, Williams was misleading or dishonest abouthis use of P.E. The Commission found that the evidence did not establish that Williamslied during the internal investigation. [AR 295:89] County says that Williams said that hissupervisor encouraged him to use P.E. but none confirmed the claim. Ooley is anindividual Williams disciplined. He also denied having anything to do with putting P.E. onWilliams’ business card but Nisbet’s declaration is inconsistent with that and Ooley did useP.E. with Williams’ name in documents. He testified that he received countless emailsfrom Williams with P.E., knew it was unethical and illegal, and did not say a word about it.[AR 475:416] He acknowledged referring to Williams as P.E., including to the CountyBoard of Supervisors. [AR 475:19476:15, 481:16482:21] The court finds Williams’testimony is the more credible. County also says Williams said he did not intend to be misleading and he temporarilyqualified the initials but did not disclose that he only did so for three to five months afterFayram confronted him. But County acknowledges that he said it was only temporary andthe full context of the two interviews does not reveal any dissembling. [AR 131134, 157159] County claims Williams was dishonest about being informed that his use of P.E. wasbenign when the State advised against the practice and confirmed that in writing. Countyis conflating two separate communications. Williams testified about what he was told in2011 when he called the State Board. County is talking about a letter drafted after Countymade a formal complaint to the State Board. There is no evidence that Williams lied about



the first conversation. And County leaves out that Williams testified about anotherconversation he had with someone at the State Board in June 2013 after the HRinvestigation began. He said that time he was told he could put P.E. in his title but wouldhave to indicate that he was not licensed in California. He acknowledged that this advicewas different than the advice he got in 2011. [AR 367:324] The record does not reflectany dishonesty. The record supports the Commission’s finding regarding dishonesty. Substantial evidence supports the Commission’s findings that any misconduct on Williams’part did not harm the public service and the misconduct is not likely to be repeated. TheCommission’s findings are consistent with its conclusion to reinstate Williams withoutfurther or alternative discipline. The Commission’s exercise of discretion to reinstateWilliams is based on reason. 3. The Commission’s Findings are Adequate: County contends the Commission did notmake adequate findings. “[T]he agency which renders the challenged decision must setforth findings to bridge the analytic gap between the raw evidence and ultimate decision ororder.” Topanga Assn. for a Scenic Community v. County of Los Angeles, 11 Cal.3d 506,515 (1974). An agency must make basic findings rather than ultimate findings. Basicfindings are supported by evidence and ultimate findings flow rationally from the basicfindings. Parkmerced Residents Org. v. San Francisco Residential Rent Stabilization Etc.Bd., 210 Cal.App.3d 1235, 1243 (1989). A verdict by the Santa Barbara County CivilService Commission “shall state the evidence relied upon and detail the reasons for eachfinding.” Santa Barbara County Code of Ordinances § 2727(d). Based on the discussion above, the court finds that the Commission’s findings adequatelybridge the gap between the evidence and the ultimate decision. It does not appear that thecase law or the Santa Barbara County Code requires quotation or citation to the record ofthe proceedings. The court finds and has discussed above several specific basic findingsthat support the Commission’s decision. 4. Conclusion: For reasons stated above, the court concludes that the Commission madeno material legal errors, substantial evidence supports the Commission’s decision, and theCommission’s findings are adequate. Therefore, the court denies County’s petition for writof administrative mandamus. C. Williams’ CrossPetition: In light of the court’s denial of County’s petition, Williams’crosspetition for writ of mandate is moot as to the statute of limitation issue. Williams raised the issue of attorney fees in his petition. He said that the Commissionawarded him attorney fees but did not set a hearing on his motion for fees. Nothing in theCommission’s decision says anything about attorney fees nor did the court see anything inthe record regarding attorney fees. Williams did not discuss the issue of attorney fees inhis opening brief in support of his crosspetition or in his opposition to County’s petition.The court will not address the matter of attorney fees.Tentative Ruling:For reasons stated below, the court denies petitioner County of Santa Barbara’s Petition



for Writ of Administrative Mandamus. Crosspetitioner Grady Williams’ Petition for Writ ofMandate is moot. ************************************************************* Please note:As a result of staffing limitations, the court has experienced delays in routingtimesensitive documents, including oppositions and replies, for prompt review. To assistthe court in avoiding delays, the court has established a generic email address forcourtesy copies of law and motion documents to be electronically sent as PDFattachments. The court strongly encourages the parties to email courtesy copies to thecourt. Instructions for sending courtesy copies are found on the court’s website at:http://www.sbcourts.org/os/tr/CourtesyLM.pdf